Patents As Weapons: How 1-800-CONTACTS Is Using The Patent System To Kill An Innovative Startup
from the shameful dept
We've talked many times about how patents are often used as weapons to kill innovative startups that threaten legacy players. Ryan alerts us to a perfect example of this in practice. 1-800-CONTACTS, the giant online contact lens/glasses space, is trying to kill off an upstart innovative competitor called Ditto. And, no, this is not a case of Ditto copying something that 1-800-CONTACTS invented. The details are astounding. First of all, Ditto's main innovation is doing something that 1-800-CONTACTS does not do (though it has since announced plans to introduce something similar), which is to let buyers of glasses take a quick webcam video of their face, and then be able to see what they would look like in various pairs of glasses. That's pretty cool. The 15 person startup got some funding for this... and then promptly got sued by the bigger company. And 1-800-CONTACTS' actions in this case show that it set out, deliberately, to kill off this innovative startup:It appears that 1-800-CONTACTS' CEO went onto Ditto's website the very day it launched, presumably to investigate the upstart competitor's new technology. Having seen Ditto's product, 1-800-CONTACTS then went out and purchased a patent from a defunct company that claims to cover selling eyeglasses over a network using a 3D model of a user's face.Yes, you read that right. First, the CEO went and saw the site, then sought out and bought a patent that could be used against the company (in this case, US Patent 7,016,824), then brought suit in a very inconvenient jurisdiction and, finally, isn't even entertaining the idea of licensing the patent. And, of course, the patent itself seems highly dubious in quality. Ditto thinks it would win the lawsuit, but spending what little money it has on litigation will almost certainly kill the company anyway. Even if it wins, it will likely lose by using up its money not on innovating, not on delivering a great service to people who want it, but on fighting a bully.
But here's the thing: 1-800-CONTACTS does not appear at all interested in licensing the patent to Ditto. Rather, it seems determined to put Ditto out of business. Period. So it's suing Ditto in federal court in Utah, hundreds of miles from Ditto's headquarters in California.
The EFF is asking for help in finding prior art for this patent, via StackExchange's prior art section, in the hopes that the patent can be invalidated quickly. In the meantime, though, shame on 1-800-CONTACTS for being an anti-innovation legal bully. Of course, this isn't the first time we've written about 1-800-CONTACTS doing dubious things against competitors. In the past, it's sued competitors for keyword ads, despite having lost similar cases and despite buying keywords on competitors itself. It seems that the company is willing to use the legal system to crack down on competition whenever it can, which makes it seem like a company worth avoiding when looking for any kind of corrective lens solutions.
Companies: 1-800 contacts, ditto
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Incredibly short-sighted.
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**Cue THE WHO**
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Easy fix: NO corporate ownership and NO TRANSFER of patents.
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Re: Easy fix: NO corporate ownership and NO TRANSFER of patents.
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Re: Easy fix: NO corporate ownership and NO TRANSFER of patents.
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Re: Easy fix: NO corporate ownership and NO TRANSFER of patents.
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This won't end well for them ... or for ... *sunglasses* THEIR BRAND.
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I'd be very interested in a study about how much economic damage this is causing already.
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Likewise, perhaps this new company would benefit from adjusting its current "product" such that infringement is avoided.
Of course, it does not serve the goal of the EFF to raise a hue and cry every time a company has the audacity to assert a patent against an "innovative startup". Its deep seated animus to anything "patent or copyright" could not be more apparent.
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If you want, you can reassign the EFF's animus of "anything patent or copyright" to me, as I will happily shoulder the label of someone who hates bad and destructive laws. But please refrain from using this case to try to drag the EFF's name through the mud. It just makes you look foolish.
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Or are you just mad that they know what's really going on with Prenda?
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"But Mr Dent, the plans have been available in the local planning office for the last nine months."
"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."
"But the plans were on display ..."
"On display? I eventually had to go down to the cellar to find them."
"That's the display department."
"With a flashlight."
"Ah, well the lights had probably gone."
"So had the stairs."
"But look, you found the notice didn't you?"
"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'."
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1) Even a patent specialist will not guarantee that they have found all relevant patents.
2) Wilful infringement allow the patent owner to ask for even more in the way of damages.
3) A search is grounds for wilful infringement, despite 1 above.
The best tactic is not to do a patent search.
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Glasses
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Re: Glasses
EyeBuyDirect makes their glasses in the US, has a reasonable return policy if you simply dislike what you chose, have a great return policy if the workmanship is defective, have a FANTASTIC accidental breakage replacement policy ($7.95, flat!), and have native-American-English speaking customer service. Yes, EyeBuyDirect is more expensive than Zenni, but their pricing is WELL below retail and their products are well-made.
(I have no financial interest or relation to EyeBuyDirect, I'm simply a very pleased customer. Almost two years ago I paid them ~$130 for specs that I priced at $600+ at multiple retail places. These, of course, I accidentally broke 4 days after receipt. EyeBuyDirect replaced them for $7.95! I'm also a fan of the $6.95 prescription sunglasses I bought from them, too!)
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It's despicable what they're doing, but I thought I'd just explain why they're suing where they are.
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Am I to believe that the new patent covers using a "default position"?
The earlier patent said: "Two of the principal measurements required to be taken in making a pair of eyeglasses are the distance between the two pupils and the height at which the optical center or multifocal portion should be positioned relevant to the frame being used."
The "new" patent said: "17... the characteristics of the 3D face model include 3D positions of pupils and a nose profile of the 3D face model in reference to the 3D reference frame."
How the hell can claim 17 of the new patent be accepted by the examiner? That was clearly stated as the prior knowledge of anyone in the area by the earlier patent, but now this new patent has the claim accepted?!?!?!? Maybe the patent examiner needs some glasses.
I can't be bothered to look into this any closer. It's such a crock of shit.
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Am I to believe that the new patent covers using a "default position"?
The earlier patent said: "Two of the principal measurements required to be taken in making a pair of eyeglasses are the distance between the two pupils and the height at which the optical center or multifocal portion should be positioned relevant to the frame being used."
The "new" patent said: "17... the characteristics of the 3D face model include 3D positions of pupils and a nose profile of the 3D face model in reference to the 3D reference frame."
How the hell can claim 17 of the new patent be accepted by the examiner? That was clearly stated as the prior knowledge of anyone in the area by the earlier patent, but now this new patent has the claim accepted?!?!?!? Maybe the patent examiner needs some glasses.
I can't be bothered to look into this any closer. It's such a crock of shit.
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Author of article didn't do his research
Now, I don't agree with what 1800-CONTACTS is doing, however this statement is totally incorrect. Glasses.com, which is owned by 1800-CONTACTS actually does have this functionality. I've used it myself. I don't know when Ditto started, or when 1800-CONTACTS implemented this feature, but I tried this out on glasses.com about 4-5 months ago. When I did it, it just took a picture and placed the different frames on my face appropriately. Now it looks like its full 3D.
Again, I'm not informed enough about the situation, and I'm not on 1800-CONTACTS side, however I would appreciate more accurate and in depth reporting. I can't trust a word of this article because of this blatantly incorrect statement by the author.
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That's pretty far from the case, even if 1800-CONTACTS methods are pretty underhanded.
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There was a mention that CONTACTS may be implementing the same feature sometime in the future, but that seems to be more covering their actions by trying to make it look like they didn't buy up the patent for litigation purposes than any real desire to do so.
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What really happened was CONTACTS already had this feature for months, went onto Ditto's website and saw they were offering the same feature, and decided to buy a patent so they could sue them to stop.
It's still sleazy but a totally different scenario. One is outright theft, the other is covering their a$$es after the fact by buying a patent.
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Glasses site
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Eye Doctors Make Profit From Extreme Markup on Frames and Lenses
“It’s not like we’re talking about narcotics here. It’s lenses and glasses.”
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I just recently bought a US600 pair of sunglasses from Oakley that are made in India from their store there for US120. If Ditto wants to sell in the US and avoid the patents issue I suggest they move to a friendlier country.
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patent trolling
an order with 800 contacts for a couple hundred bucks.
i would have thought twice or gone to costco (even though they probably get them from 800 contacts themselves).
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